We are moving along as if the Supreme Court upheld Richard Nixon's contention that "if the president does it, that means it is not illegal." The novel understanding of the divine right of presidents is necessary because our president -- as Speaker Ryan pointed out -- is not a politician, so he has no knowledge of what is and isn't legal in government.
So OK, an eight-year learning curve for Donald J. Trump.
But now the Supreme Court of the United States has ruled, 4-2, that all the president's men can't be prosecuted for violating people's First, Fourth and Fifth Amendment rights, even though they used to be prosecuted for such things. Because 9-11. A good story from New York magazine is here. The SCOTUS opinion is here. More after he break.
From 1971 until this week federal officials could be sued for damages if they violated your constitutional rights. That was the result of a Supreme Court ruling by activist federal judges who reasoned that when Congress passed a law saying state and local officials could be sued it followed that federal officials could be as well. For nearly 50 years Congress has accepted that ruling as law without trying to change it, and the Supreme Court has decided scads of cases on the basis of that precedent.
But last Monday non-activist (because they are "conservatives" -- right?) justices Roberts, Alito, Thomas and Kennedy, with Kennedy writing, decided that precedent be damned, nobody can be sued even though the plaintiffs and others (not all Muslim, by the way) were held for up to six months until-- and after -- the FBI cleared them of involvement in the 9-11 attacks. They were held in small cells for 23 hours a day with the lights always on, shackled when they were out of their cells, denied hygiene, frequently strip-searched, slammed up against walls and otherwise abused. All this was despite the fact that they had never been charged in connection with the attacks and even after it was known by law enforcement officials that they had no connection to the attacks.
They were among 800 people detained on the principle of "round up the usual suspects" after 9-11. Eighty-four were held in Brooklyn long past the time the FBI lost interest. Six, who were eventually deported for having been in the country illegally, filed a class action suit for all 84. For years the suit was a hot potato in the federal courts where justice is never swift and, in this case, not even justice. Even Kennedy wrote that the plaintiffs hadn't been treated nicely. But 9-11, you know.
Justice Breyer (Justice Ginsburg agreeing) took the decision apart in a scathing dissent. (Justice Gorsuch wasn't on the court when the case was heard and Jusrices Sotomayor and Kagan were involved in earlier parts of the case.)
Clearly the bold four conservatives who decided this case reached the conclusion they wanted to by treating precedent like a bag of M&Ms. if you ever have your rights violated by a public official, make sure he works for the state or the county. You can't touch the President's Men. Ziglar v. Abassi.
With ICE and other formerly obscure agencies detaining people left and right these days, it is inevitable that more people will be treated like the Brooklyn 48. This Supreme Court decision came at exactly the wrong time for the rule of law and for common decency.